Margaret Cunneen's ICAC challenge tests limits of powers

Michaela Whitbourn

Lawyers, politicians, multimillionaire businessmen: no one has escaped the attention of the Independent Commission Against Corruption.

Over the past two years, the ICAC has been flexing its investigative muscle by going after some of the biggest names in Sydney – little wonder, then, that it is facing questions about the reach of its powers.

The Supreme Court challenge by deputy senior Crown prosecutor Margaret Cunneen, SC, to the ICAC's jurisdiction to investigate allegations against her, along with her son and his girlfriend, will test the limit of those powers.

The ICAC Act makes clear that the commission has the power to investigate "corrupt conduct", defined to include the conduct of any person, whether or not a public official, that adversely affects, or could adversely affect, the exercise of official functions by a public official, such as a police officer.

The act says such conduct "could involve ... perverting the course of justice", which is the central allegation in the Cunneen inquiry.

Ms Cunneen's legal team, led by Arthur Moses, SC, says the conduct in this case does not fall within the statutory definition of corrupt conduct.

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He also argued in court on Tuesday that Ms Cunneen, a public official, should not be investigated because the alleged conduct was unrelated to her public function as a Crown prosecutor.

Mr Moses was one of the barristers who acted for former Supreme Court judge and Attorney-General Jeff Shaw in his challenge in 2006 to the Police Integrity Commission's power to report to Parliament on an incident involving him.

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Mr Shaw, who died in 2010, had asked the court for an order restraining the PIC from reporting on the circumstances in which blood alcohol samples taken from him after a drink-driving accident in 2004 came to be in his possession rather than that of the police. The police were cleared of any wrongdoing over the incident.

The Supreme Court ruled at first instance that the PIC did not have the power to report on Mr Shaw, a former public official, but the decision was overturned on appeal.

The PIC can investigate public officials and private citizens in some cases. It shares the definition of "public official" that is used in the ICAC Act and Court of Appeal judge John Basten said the PIC was correct to regard Mr Shaw as a public official, even though the conduct in question related to his private life.

One observation that may be troubling for the Cunneen camp is that Justice Basten said in the Shaw case that while it was "conceivable" that the ICAC would have no interest in Mr Shaw's conduct, "that may be doubtful on the present facts".

Wednesday's court hearing will help decide whether the ICAC is right to take an interest in Margaret Cunneen.